Thomas v. Broome et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action without prejudice, and that the Court DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Complaint. It is further recomm ended that the Court DENY Plaintiff leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 10/20/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/6/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

KENTRELL NICALL THOMAS,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-111

v.
DOCTOR DEAN BROOME; REGINA
HATLEY; DR. CLARK; NURSE
TOMBERLINE ,
Defendants.

ORDER and REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
directive of August 14, 2017. (Doc. 2.) For the following reasons, I RECOMMEND that the
Court DISMISS Plaintiff’s claims, (doc. 1), without prejudice for failure to prosecute and
failure to follow this Court’s directives.

I further RECOMMEND that the Court DENY

Plaintiff leave to appeal in forma pauperis.
BACKGROUND
On August 14, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Georgia State Prison in Reidsville, Georgia.
(Doc. 1.) Plaintiff did not pay the required filing fee or move to proceed in forma pauperis when
filing this action. Accordingly, on August 14, 2017, the Clerk of Court directed Plaintiff to
either pay the $400.00 filing fee or file a motion to proceed in forma pauperis. (Doc. 2.) The
Clerk warned Plaintiff that his failure to comply with that notice may result in dismissal of this

action. Plaintiff has not taken any action in response to that directive. Indeed, Plaintiff has not
made any filings in this case since his initial Complaint.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to pay the filing fee and
failure to comply with this Court’s directive. For the reasons set forth below, I recommend that
Plaintiff’s claims be dismissed and that he be denied leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Follow this Court’s Orders
A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal

Rule of Civil Procedure 41(b) (“Rule 41(b)”) or the court’s inherent authority to manage its
docket. Link v. Wabash Railroad Company, 370 U.S. 626 (1962); 1 Coleman v. St. Lucie Cty.
Jail, 433 F. App’x 716, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows
for the involuntary dismissal of a plaintiff’s claims where he has failed to prosecute those claims,
comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed. R.
Civ. P. 41(b); see also Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660, 2005
WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.
1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua
sponte . . . dismiss any action for want of prosecution, with or without prejudice[,] . . . [based on]
willful disobedience or neglect of any order of the Court.” (emphasis omitted)). Additionally, a
district court’s “power to dismiss is an inherent aspect of its authority to enforce its orders and

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In Wabash, the Court held that a trial court may dismiss an action for failure to prosecute “even without
affording notice of its intention to do so.” 370 U.S. at 633. Nonetheless, in the case at hand, the Court
advised Plaintiff that his failure to pay the filing fee or move to proceed in forma pauperis could result in
dismissal of this action. (Doc. 2.)

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ensure prompt disposition of lawsuits.” Brown v. Tallahasse Police Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without
prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. Taylor, 251 F. App’x at 619; see
also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03.
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute, because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute
Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and
court had informed plaintiff that noncompliance could lead to dismissal). With Plaintiff having
neither paid the filing fee nor moved to proceed in forma pauperis, the Court cannot proceed in

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this case. See 28 U.S.C. §§ 1914, 1915. Moreover, Plaintiff was given ample notice of the
consequences of his failure to follow the Court’s directive, and Plaintiff has not made any effort
to do so or to otherwise prosecute this case.
Thus, Plaintiff’s Section 1983 Complaint, (doc. 1), should be DISMISSED without
prejudice for failure to prosecute, and this case should be CLOSED.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the
Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not
take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. §
1915(a)(3); FED. R. APP. P. 24(a)(3). Good faith in this context must be judged by an objective
standard. Busch v. Cnty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or,
stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith,
if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

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Based on the above analysis of Plaintiff’s failure to follow this Court’s directives, there
are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith.
Thus, the Court should DENY Plaintiff leave to proceed in forma pauperis on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this action
WITHOUT PREJUDICE, and that the Court DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOSE this case. I further recommend that the Court
DENY Plaintiff leave to proceed in forma pauperis on appeal.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the undersigned failed to address any
contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions herein.

See 28 U.S.C.

§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be served
upon all other parties to the action.

Upon receipt of objections meeting the specificity

requirement set out above, a United States District Judge will make a de novo determination of
those portions of the report, proposed findings, or recommendation to which objection is made
and may accept, reject, or modify, in whole or in part, the findings or recommendations made
herein.

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Objections not meeting the specificity requirement set out above will not be considered
by the District Judge.
SO REPORTED and RECOMMENDED, this 6th day of October, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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